U.S. v. Hyppolite, 94-5587

• Decision Date: 21 September 1995
• Docket Number: No. 94-5587,94-5587
• Citation: 65 F.3d 1151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terveus HYPPOLITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1151

65 F.3d 1151

UNITED STATES of America, Plaintiff-Appellee, v. Terveus HYPPOLITE, Defendant-Appellant.

No. 94-5587.

United States Court of Appeals Fourth Circuit.

Argued May 2, 1995.

Decided Sept. 21, 1995.

ARGUED: Warren Gary Kohlman, Kohlman, Rochon & Roberts, Washington, DC, for appellant. Captain Benjamin Clarke Hall, Special Assistant United States Attorney, Camp Lejeune, NC, for appellee. ON BRIEF: Janice McKenzie Cole, United Before RUSSELL, WIDENER, and HALL, Circuit Judges.

States Attorney, Camp Lejeune, NC, for appellee.

Affirmed by published opinion. Judge RUSSELL wrote the majority opinion, in which Judge WIDENER concurred. Judge HALL wrote a dissenting opinion.

OPINION

DONALD RUSSELL, Circuit Judge:

Defendant Terveus Hyppolite appeals the denial of his motion to suppress evidence obtained during a search of his apartment He also appeals various aspects of his sentencing for drug and firearm offenses. We affirm.

I.

After months of investigation, officers from the Jacksonville Police Department ("JPD") in North Carolina, working in conjunction with federal, state, and county law enforcement departments, suspected Steven Rodney of supplying cocaine to military personnel at Camp Lejeune, North Carolina, and to civilians. On June 1, 1993, the officers executed a search warrant at Apartment C, 132 Old Maplehurst Road ("Apartment 132-C"), in Jacksonville, Rodney's only known residence. The officers arrested Rodney and seized drugs, a gun, and drug paraphernalia during the search. The officers also noticed a pick-up truck with Florida license plates in a parking lot adjacent to the apartment building. They learned that the truck was registered to Terveus Hyppolite in Miami, Florida. Detective Steven Selogy of the JPD recognized Hyppolite's name from the investigation of a shooting in December 1992 at a mobile home registered to Rodney. Hyppolite's driver's license had been found in the mobile home.

The officers also found a local security system installer inside Apartment 132-C during the search. The installer told Commander Robert Toth of the JPD that he had given Rodney an estimate for an alarm system to be installed in an apartment at 1954 Countrywood Boulevard. The installer explained that when he had inspected the apartment for the estimate he had picked up Rodney in front of a townhouse at 1910 Countrywood Boulevard and had returned him to that location.

The officers then performed a "knock and talk" canvassing of the block around 1910 Countrywood Boulevard in an effort to find Rodney's drug-trafficking associates. Officer Timothy Malfitano of the JPD noticed Hyppolite in the front yard of 1914 Countrywood Boulevard. He also noticed a blue car with Michigan plates in front of the house. Hyppolite told the officer that he was visiting and that the owners of the residence were not home. When the officer knocked on the door, Deborah Cedeno answered and claimed that she too was visiting.

Hyppolite freely gave his name when asked by Officer Malfitano, but refused to go inside and talk. Commander Toth arrived with other officers and informed Hyppolite that he had become a target of the investigation because of his association with Rodney. Hyppolite explained that he had allowed Rodney to borrow his pick-up truck. Commander Toth then asked Hyppolite where he worked. Hyppolite responded that he invested money in stocks with his friends in Miami. Upon further questioning, he refused to disclose his sources of income and became very nervous. When Commander Toth asked him if there were controlled substances at the residence, Hyppolite asserted that he would not say anything to incriminate himself. He also declared that he did not want to speak further without a lawyer, and he refused to consent to a search of 1914 Countrywood Boulevard, which he now admitted was his residence. When Hyppolite became loud and aggressive, and began to walk away from the premises, Commander Toth "freezed" the scene by arresting Hyppolite for the misdemeanor of resisting, obstructing, and delaying a police officer. After being placed under arrest, Hyppolite yelled to Cedeno and advised her not to say anything to incriminate herself.

Meanwhile, Detective Selogy recognized the blue car and advised Commander Toth that he had seen it in front of Apartment 132-C on May 27, 1993, and that he had followed it through Jacksonville. The occupants in the car went to pager dealers and to the house of a convicted drug dealer. Detective Selogy identified Hyppolite and Cedeno as the couple riding in the car with Rodney. ¹

Commander Toth and Detective Selogy then left to procure a search warrant while Hyppolite was detained in the yard. About two hours later, Onslow County Magistrate James Padgett issued a search warrant for 1914 Countrywood Boulevard based on Commander Toth's affidavit. During the ensuing search of Hyppolite's apartment, the officers recovered approximately 2.4 kilograms of cocaine powder, 110 grams of cocaine base, drug paraphernalia, and two guns.

On August 10, 1993, a grand jury for the Eastern District of North Carolina returned a ten-count indictment against Hyppolite and Rodney. The indictment charged Hyppolite with one count of conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 846; one count of possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. Sec. 841(a)(1); and one count of using a firearm during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c).

On December 10, 1993, United States Magistrate Judge Wallace W. Dixon conducted a hearing on Hyppolite's motion to suppress evidence obtained from the search of his apartment. On March 24, 1994, the Magistrate Judge recommended denying Hyppolite's motion because, even if the warrant lacked probable cause, the evidence should be admitted under the good faith exception to the exclusionary rule. The district court adopted the Magistrate Judge's recommendation and denied Hyppolite's motion to suppress. Hyppolite proceeded to trial, and on April 12, 1994, the jury convicted him on all three counts. During the sentencing hearing on August 2, 1994, the district court denied Hyppolite's objections to the presentence report. The court sentenced him to life imprisonment and a concurrent forty-year term, to be followed by a five-year term for the firearm charge. The court also fined Hyppolite $300,000.

II.

We first address Hyppolite's challenge to the district court's denial of his motion to suppress. As a preliminary matter, we find it necessary to set out the district court's precise ruling. ² The court found that before the officers encountered Hyppolite, no probable cause existed for a search warrant because the facts, at best, supported merely a "hunch" that he was involved in Rodney's drug operation and that drugs would be found at Hyppolite's apartment. The court determined that the magistrate also considered factors such as Hyppolite's refusal to answer questions and his refusal to consent to the search, as well as the manner of his refusals. The court then noted that, although the assertion of constitutional rights usually should not support a finding of probable cause, this Court had left open the question of whether the form in which a suspect asserts rights can properly be considered in the context of a seizure. See United States v. Wilson, 953 F.2d 116, 126 (4th Cir.1991).

The district court, however, refrained from deciding whether the magistrate could properly consider the form in which Hyppolite asserted his constitutional rights. Therefore, the court, contrary to Hyppolite's belief and the government's apparent concession, never determined whether Commander Toth's affidavit established probable cause for the search warrant. Instead, the court concluded only that the evidence seized pursuant to the warrant should be admitted under the good faith exception to the exclusionary rule. The court reasoned that:

While it was improper to consider Hyppolite's assertion of rights, and possibly the manner in which he made these assertions, the decision as to whether such factors could be considered was essentially a legal one. In this situation, the officers sought a warrant from a neutral magistrate. The fact that the magistrate may have improperly determined which factors he could rely on in determining probable [cause] is not a matter that can be laid at the officers' feet. Nor should they be charged with the responsibility of second-guessing such legal determinations.

We now turn to the question of whether the officers satisfied the good faith requirement.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court established the good faith exception to the exclusionary rule. The Supreme Court held that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." Id. at 922, 104 S.Ct. at 3420. Nevertheless, the Court found that an "officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued." Id. at 922-23, 104 S.Ct. at 3420-21 (citations and footnotes omitted). The Leon Court also outlined four situations in which an officer's reliance on a search warrant would not be reasonable:

(1) the magistrate was misled by information in an affidavit that the officer knew was false or would have known was false except for the officer's reckless disregard of the truth;

(2) the magistrate wholly abandoned his detached and neutral judicial role;

(3) the warrant was based on an affidavit that was so lacking in...